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Commentary: Safe Harbor Deal Reached Feb. 2, 2016

Editor's Note: On Feb. 2, 2016, the United States and European Union established a new Safe Harbor Agreement - called EU-US Privacy Shield - with stronger obligations for United States companies to protect the personal data of Europeans. Georgia Tech's Peter Swire issued this statement about the new agreement.

New Safe Harbor Agreement Brings Important Reforms to Fruition

By Peter Swire
Today the European Union and United States announced a new framework for transatlantic data flows, called the EU-US Privacy Shield. This will update the EU-US Safe Harbor agreement, for which I was part of the negotiating team in 2000. At the invitation of European Union privacy officials, I testified in December 2015 about “US Surveillance Law, Safe Harbor, and Reforms Since 2013,” available at http://tinyurl.com/zgmkfl5.

The US has made multiple and important reforms to its surveillance law since the Snowden stories began in 2013. Congress passed the USA-Freedom Act in 2015, which among other good measures banned bulk collection of telephone records. President Obama in 2014 issued Presidential Privacy Directive-28, announcing the principle that privacy and civil liberties protections should apply to Europeans and others outside of the US, where possible. We have updated US law while protecting our national security and other vital interests.

I was in Brussels last week while the Safe Harbor negotiations were underway, including a debate with Max Schrems, the Austria privacy activist who started the case that brought down the old Safe Harbor. (Audio at https://soundcloud.com/justin-hemmings-44462987/privacy-in-the-eu-and-us-a-debate-between-max-schrems-and-peter-swire).

In my view, the surveillance reforms since 2013 were essential to bringing the Europeans on board. The Schrems litigation assumed there was “mass and indiscriminate surveillance” by the US. The US surveillance reforms gave our allies what they needed to conclude the deal.

The agreement announced today averts a trade war that threatened to cut off a vast array of data flows between Europe and the United States. Effective reforms and effective diplomacy have saved the day.
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Peter Swire is the Huang Professor of Law and Ethics at the Georgia Tech Scheller College of Business, and Associate Director for Policy of the Institute for Information Security and Privacy at Georgia Tech. In 2013, he served as one of five members of President Obama’s Review Group on Intelligence and Communications Technology.